TCS Daily


Limiting the Statute of Limitations

By Douglas Kern - September 30, 2005 12:00 AM

When life seems lovely and good, I like to remind myself that humanity is a depraved and wicked race whose depredations are rarely put to right in a single lifetime. I keep a folder of bookmarks in Internet Explorer, titled: "Sheer Evil." The latest entry in my cavalcade of misery is the Grand Jury report from the Philadelphia District Attorney, chronicling the wretched sex abuse scandal in the Catholic Archdiocese of Philadelphia. For connoisseurs of these scandals, this report is not so much surprising as paradigmatic. Tortured children? Check. Aggressive diocesan defense lawyers? Check. Indifferent, self-serving clerical leadership? Check. Bad guys not significantly punished? Check. Move along, folks, nothing to see here. After three years of such revelations around the U.S., your anger reaches a boiling point, and then turns to steam. To paraphrase Stalin: one molested kid is a tragedy. Eleven hundred are a statistic.

Like most states, Pennsylvania requires criminal prosecutions to be initiated within a defined period of time after a crime has been committed. If that time passes without an indictment, the crime can never be prosecuted - ever! The statute of limitations is an ancient rule that reflects an inescapable fact: nearly every criminal prosecution relies on memories, and time is the enemy of accurate recollection. It seems reasonable to conclude that, after some amount of time has elapsed, any criminal prosecution is more likely to go awry than to arrive at the truth. Moreover, limited prosecutive resources are generally put to better use in the pursuit of fresh, solvable cases, rather than old, ambiguous cases.

Consequently, many of the child sex assault victims discussed in the Philadelphia D.A.s report will never see their tormentors prosecuted. This perversion of justice has prompted some politicians and commentators to call for an abolition of the Pennsylvania statute of limitations as it applies to child sex assault victims.

Many states have passed such laws, and for compelling reasons. We now know that child sex predators often employ fear, trickery, and coercion to prevent children from reporting the atrocities committed against them. Paralyzed with shame and terror, and bereft of the experience and self-control that might help them endure such evils, children often find the courage to report their experiences only many, many years after the fact - if, indeed, they report their experiences at all. It sickens the soul to observe pedophiles "rewarded" for terrorizing their victims into silence. Was the statute of limitations really intended to create such travesties?

Thus, some states allow prosecutions of sex assaults against children for a defined period of time after the victim turns eighteen. In these states, victims can assess their situations as adults, and report (or decline to report) their experiences accordingly. And in some states, the statute of limitations for child sex assaults has been abolished altogether.

Is that wise?

I can't believe I'm taking the side of child molesting monsters for any reason whatsoever. But even a law-and-order, criminal-hating troglodyte like me must concede that there's something troubling about convicting men for serious felonies solely on the strength of fifty-year-old memories. And it's reasonable to question whether juries might overlook the dubious quality of such evidence in the rush to punish someone for these sickening crimes. After reading that report, I would cheerfully see some of those abusers (and their slithering enablers) thrown into wood-chippers. My reaction can't be unique. As a jury member, could I put aside my righteous anger to critically assess the validity of old evidence? I think so, but I can't blame the legal system for doubting my sincerity. Moreover, we have to accept the possibility that in this, the age of the lawsuit, many child sex assault claims may spring from settlement-chasing con artists, disturbed nutcases, or victims of bogus "recovered memory" pseudo-science, all looking to cash in on the sputtering outrage of people like, er, me.

And yet, and yet. And yet there are perpetrators whose guilt is not seriously in dispute. Some have confessed to their victims, or to the media. Some established obvious patterns of deviancy among multiple victims. Some were caught in the act. It's absurd to protect these creeps from criminal conviction out of fear that faulty memories might taint the evidence against them.

So why not split the difference? I suggest a modified statute of limitations that would exclude marginal old cases while allowing strongly meritorious old cases to proceed. For felony crimes of a sexual nature in which the victim was under eighteen at the time of the offense, the statute of limitations should constitute a rebuttable presumption rather than an irrefutable rule. Generally, such crimes would be barred from prosecution, but prosecutors could overcome that bar by proving to the court that the state possesses evidence of sufficient reliability to overcome the inherent problems of old cases. Judges would hold contested hearings to weigh the quality of the offered evidence; if it seems more likely than not that the state has met its heightened burden of producing sufficiently reliable evidence, the prosecution could proceed.

What evidence would meet the "sufficient reliability" test? Some examples:

        -     Confessions
        -     DNA evidence (hey, it could happen)
        -     Consistent methods of operation established through other bad acts, 
              provided that the other bad acts can be supported with reliable evidence
        -     Eyewitnesses to the abuse who can corroborate the victim's narrative 
        -     Documentary evidence (letters, photographs, business records, etc.)
        -     Multiple prior consistent statements made by the victim at the time 
              of the offense, particularly where the victim made those statements 
              against his or her own interest

This solution is far from perfect. Many legitimate cases of child sex abuse will not be able to surmount the evidentiary hurdles I suggested above. And many such cases that make it to trial will fail, because even good evidence grows less persuasive with the passage of time. But my approach fulfills the spirit of the statute of limitations while allowing obvious and reasonable exceptions to be exempted from it. And if ever a situation cried out for such exemptions, it's this one.

Prosecution is no panacea. No criminal conviction can undo decades of suffering. But the harms from justice denied are incalculable. Victims wrongly kept from their day in court will often seek their due in other ways: in vicious civil lawsuits; in contempt for faith and authority; in acts of lawlessness and self-destruction; and in the poison of bitterness that can corrode a life from the inside out. I refuse to believe that a decent concern for the rights of the accused compels us to allow obvious monsters to walk free, having frightened and humiliated their ways to comfortable lives. With a little legal creativity, we can balance the interests of accusers and the accused. Read that report, and you'll agree that we have to try.

The author is a lawyer and TCS contributing writer.

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